Avery v R

The applicant, Avery, appealed against his sentence for two counts of aggravated break and enter and for being carried in a conveyance taken without consent. The applicant's appeal was heard in the High Court of Australia. The key issues before the Court were whether the sentencing judge had made erroneous factual findings regarding the applicant's participation in the joint criminal enterprise, failed to consider evidence of the applicant's intoxication, failed to give proper effect to the finding of special circumstances, and whether the discount for assistance applied was appropriate. Additionally, the Court considered whether the sentence was manifestly excessive. The Court also examined whether the applicant was bound by the conduct of the case at first instance because the submissions in support of the grounds of appeal were not put to the sentencing judge.

The Court found that the sentencing judge had made no erroneous factual findings regarding the applicant's participation in the joint criminal enterprise. The Court held that the sentencing judge had appropriately considered evidence of the applicant's intoxication. However, the Court found that the sentencing judge had not given proper effect to the finding of special circumstances. The Court held that the discount for assistance applied by the sentencing judge was appropriate, and the sentence was not manifestly excessive. The Court held that the applicant was bound by the conduct of the case at first instance as the submissions in support of the grounds of appeal were not put to the sentencing judge. The Court dismissed the appeal.

The Court made no orders regarding the sentence. The Court held that the appeal was dismissed on the basis that the applicant was bound by the conduct of the case at first instance and that the sentencing judge had not erred in any of the other respects argued.